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Lord Neuberger sets limits on article 8 defence to possession proceedings

Courts should identify 'minority of cases' early

19 March 2012

Lord Neuberger has reined in the use of the article 8 defence to possession proceedings in two Court of Appeal cases involving an introductory and a starter tenancy.

Daniel Skinner, head of housing at Bachelors, acted for the West Kent Housing Association. “The article 8 defence is overused and not always dealt with properly by the courts,” Skinner said.

“We would hope that this decision will encourage courts to identify those minority of cases early where they should fully investigate the question of proportionality, as opposed to the much greater number where they can be dealt with on a summary basis.”

In Hounslow v Powell [2011] UKSC 8, the Supreme Court ruled that councils and housing associations must consider the question of proportionality before deciding to evict people on introductory tenancies (see solicitorsjournal.com, 28 February 2011).

Delivering judgment at the Court of Appeal, Lord Neuberger said in the circumstances of introductory or ‘starter tenancies’ it would only be in exceptional cases that the courts should consider article 8.

The court heard in Corby v Scott [2012] EWCA Civ 276 that Nicholle Scott was served with notice of proceedings after falling into arrears and the council received complaints about noise coming from her flat.

In the related appeal, West Housing Association v Haycraft, a notice requiring possession was served on Jack Haycraft after an allegation of indecent exposure and other allegations of noise and nuisance were made against him. The Master of the Rolls said the facts in Corby got “nowhere near” to justifying the contention that it would be disproportionate for the council to obtain possession under article 8.

In Haycraft, he said the indecent exposure allegation, on which the association’s decision to seek possession was based, was properly investigated by a reviewing panel which concluded that it had occurred.

Lord Neuberger said Corby emphasised that judges should be “rigorous” in ensuring that only relevant matters were taken into account and not let “understandable sympathy for a particular tenant have the effect of lowering the threshold”.

He said Haycraft showed “how exceptional the facts relied on by any residential occupier must be before an article 8 case can have a real prospect of success”.

Lord Neuberger allowed the appeal by Corby Borough Council and dismissed Haycraft’s appeal. Lord Justices Richards and Davis agreed.

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